Generally revise nuisance laws

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AN ACT GENERALLY REVISING NUISANCE LAWS; REVISING THE DEFINITION OF PUBLIC NUISANCE;
PROVIDING FOR PREEMPTION; REVISING LAWS RELATING TO LIABILITIES FOR PUBLIC NUISANCES;
PROVIDING FOR PUBLIC NUISANCE ACTIONS BY THE GOVERNMENT; PROVIDING FOR A PRIVATE
CAUSE OF ACTION FOR A PUBLIC NUISANCE; PROVIDING FOR ABATEMENT OF A PUBLIC NUISANCE
BY THE GOVERNMENT; PROVIDING FOR PRIVATE NUISANCES, FOR LIABILITIES OF PRIVATE
NUISANCES, AND FOR REMEDIES FOR PRIVATE NUISANCES; PROVIDING FOR EMERGENCY
ABATEMENT OF PRIVATE NUISANCES BY INJURED PERSONS; AMENDING SECTIONS 27-30-101 AND
27-30-204, MCA; REPEALING SECTIONS 27-30-102, 27-30-103, 27-30-104, 27-30-105, 27-30-201, 27-30-
202, 27-30-203, 27-30-301, AND 27-30-302, MCA; AND PROVIDING APPLICABILITY DATES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 27-30-101, MCA, is amended to read:
"27-30-101. Definition of public nuisance. (1) Anything that is injurious to health, indecent or
offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable
enjoyment of life or property, or that unlawfully obstructs the free passage or use, in the customary manner, of
any navigable lake, river, bay, stream, canal, or basin or any public park, square, street, or highway is a
nuisance.
(2) Nothing that is done or maintained under the express authority of a statute may be deemed a
public or private nuisance.
(1) A public nuisance is:
(a) a condition arising out of the use of real property that unlawfully interferes with a public right by
endangering communal safety, being indecent to the community, or being offensive to the community; or
(b) a condition that unlawfully interferes with the public right to free passage or use, in the
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customary manner, of a navigable lake, river, bay, stream, canal, or basin or a public park, square, street, road,
or highway.
(2) The following nonexclusive list of actions or conditions may not be considered a public
nuisance or be the basis for a public nuisance cause of action:
(a) an action or condition that is lawful;
(b) an action or condition that is authorized, approved, licensed, or mandated by statute,
ordinance, regulation, permit, license, order, rule, or other similar measure issued, adopted, promulgated, or
approved by a government entity. This includes conditions or actions that are subject to an order, notice, or
decree issued under 75-10-711 or 75-10-712.
(c) noises resulting from the shooting activities at a shooting range during established hours of
operation;
(d) impairment of the spiritual, cultural, or emotional significance associated with a navigable lake,
river, bay, stream, canal, or basin or a public park, square, street, road, or highway;
(e) the design, manufacturing, distributing, selling, labeling, or marketing of a product;
(f) the aggregation of individual injuries or private rights, including private nuisances; or
(g) the design, manufacturing, distributing, selling, labeling, or marketing of firearms, firearm
accessories, or ammunition, as defined in 30-20-301, or components of firearms, firearm accessories, or
ammunition.
(3) An agricultural or farming operation, a place, an establishment, or a facility or any of its
appurtenances or the operation of those things is not or does not become a public or private nuisance because
of its normal operation as a result of changed residential or commercial conditions in or around its locality if the
agricultural or farming operation, place, establishment, or facility has been in operation longer than the
complaining resident has been in possession or commercial establishment has been in operation.
(4) As used in this chapter, the term "unlawfully interferes" includes but is not limited to actions or
conditions that violate a statute, ordinance, regulation, permit, license, order, rule, or other similar measure
issued, adopted, promulgated, or approved by a government entity. This includes any statute, ordinance,
regulation, permit, license, order, rule, or other similar measure issued, adopted, promulgated, or approved by a
government entity either before or after [the effective date of this act].
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(4) Noises resulting from the shooting activities at a shooting range during established hours of
operation are not considered a public nuisance."
Section 2. Definition of private nuisance. (1) A private nuisance is a condition arising out of the use
of real property that:
(a) is injurious to health or safety, indecent or offensive to the senses of an individual on an
adjacent or neighboring property, or
(b) obstructs the free use of an adjacent of neighboring property so as to interfere with the
comfortable enjoyment of life or property.
(2) The following may not be considered a private nuisance or be the basis for a private nuisance
cause of action:
(a) an action or condition that is authorized, approved, licensed, or mandated by statute,
ordinance, regulation, permit, license, order, rule, or other similar measure issued, adopted, promulgated, or
approved by a government entity. This includes conditions or actions that are subject to an order, notice, or
decree issued under 75-10-711 or 75-10-712; or
(b) noises resulting from the shooting activities on a shooting range during established hours of
operation.
(3) An agricultural or farming operation, a place, an establishment, or a facility or any of its
appurtenances or the operation of those things is not or does not become a private nuisance because of its
normal operation as a result of changed residential or commercial conditions in or around its locality if the
agricultural or farming operation, place, establishment, or facility has been in operation longer than the
complaining resident has been in possession or commercial establishment has been in operation.
Section 3. Preemption. This chapter abrogates the common law of public nuisance and private
nuisance in this state to the extent common law is inconsistent with this chapter.
Section 4. Liability for a public nuisance. (1) A person may be subject to a public nuisance cause
of action only if that person proximately caused the public nuisance at the time the public nuisance was
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created, which includes controlling, or instructing another person to engage in, the activity that proximately
caused the public nuisance.
(2) Every successive owner of property who neglects to abate a continuing public nuisance upon
or in the use of the property that was created by a former owner is liable for the public nuisance in the same
manner as the one who first created it.
(3) No lapse of time can legalize a public nuisance amounting to an actual obstruction of public
right.
Section 5. Public nuisance actions by government. (1) A public nuisance cause of action is
available to a government entity only if the public nuisance is within the jurisdiction of that government entity.
Past, current, or future expenditures made by a government entity related to injunction of or any other response
to a public nuisance does not itself confer standing to file or maintain a public nuisance action.
(2) In a public nuisance action brought by a government entity, the only remedies against a public
nuisance are:
(a) indictment or information as regulated by Titles 45 and 46;
(b) injunctive relief to enjoin an unlawful activity that is proximately causing a public nuisance; and
(c) monetary and nonmonetary resources, if quantifiable, that a court determines are reasonably
necessary to abate the public nuisance based on relevant and reliable cost factors and established by clear and
convincing evidence. All resources provided under this subsection (2) must be spent to abate the public
nuisance itself.
(3) Remedies available under this section may not include:
(a) the costs of abating a potential future public nuisance; or
(b) damages of any kind, including economic, noneconomic, and exemplary damages.
(4) For the purposes of this chapter, the term "government entity" means the state, an agency or a
political subdivision of the state, a federal entity or agency, or any other governing authority, including a tribal
government.
(5) Nothing in this chapter limits the authority of a government entity to order any person to vacate
the right-of-way of a public highway of this state classified within the commission-designated highway system or
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as a state highway, as provided in 60-1-201, or any navigable lake, river, bay, stream, canal, or basin or a
public park, square, street, road, or highway.
Section 6. Private cause of action for public nuisance. (1) A public nuisance cause of action is
available to a private person only if that person has sustained a special injury proximately caused by the public
nuisance and only if the person can show the existence of the special injury by clear and convincing evidence.
(2) A special injury is an injury that is different in kind, not just in degree, from an injury sustained
by the general public exercising the same public right. A special injury is not one based upon impairment of the
spiritual, cultural, or emotional significance associated with a navigable lake, river, bay, stream, canal, or basin
or a public park, square, street, road, or highway.
(3) Financial expenditures made by a private person related to an injunction of, or any other
response to, a public nuisance does not constitute a special injury sufficient to confer standing on the person to
file or maintain a public nuisance action.
(4) The remedy available to a private person in a public nuisance action is limited solely to
compensatory damages for the special injury.
(5) The abatement of a public nuisance pursuant to 27-30-204 does not preclude the right of a
person to recover compensatory damages under this section.
(6) Private persons may not bring a class action for special injuries arising out of a public nuisance.
Section 7. Section 27-30-204, MCA, is amended to read:
"27-30-204. Abatement of public nuisance by public body government entity or officer or
injured party. A public nuisance may be abated by any public body a government entity or officer authorized
by law. A person may abate a public nuisance that is specially injurious to that person by removing or, if
necessary, destroying the thing that constitutes the nuisance, as long as doing so would not constitute without
committing a breach of the peace or cause doing unnecessary injury. Nothing in this section alters the remedies
to a government entity or private person in a public nuisance cause of action."
Section 8. Action for private nuisance. An action for private nuisance may be brought by a person
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whose property is injuriously affected or whose personal enjoyment of property is lessened by the private
nuisance.
Section 9. Liability for private nuisance. (1) A person may be subject to a private nuisance cause
of action only if that person, or the person's agent, proximately caused the private nuisance or, if that person is
not available for a private nuisance lawsuit or cannot satisfy a private nuisance judgment, the person who owns
or controls the real property where the private nuisance exists.
(2) Every successive owner or controller of real property who neglects to abate a continuing
private nuisance upon or in the use of the property that was created under previous ownership is liable for the
private nuisance in the same manner as the one who owned or controlled the real property when the private
nuisance was created.
Section 10. Remedies for private nuisances. The remedies against a private nuisance are:
(1) injunctive relief to enjoin an activity proximately causing the private nuisance;
(2) monetary and nonmonetary resources, if quantifiable, that a court determines are reasonably
necessary to abate the private nuisance based on relevant and reliable cost factors and established by clear
and convincing evidence. All resources provided under this subsection must be spent to abate the private
nuisance itself.
(3) damages proximately caused by the private nuisance.
Section 11. Emergency abatement of private nuisance by injured party. A person injured by a
private nuisance may abate it by removing or, if necessary, destroying the thing that constitutes the private
nuisance so long as doing so would not constitute committing a breach of the peace or cause unnecessary
injury. When a private nuisance results from a mere omission of the wrongdoer and cannot be abated without
entering upon the wrongdoer's land, reasonable notice must be given to the wrongdoer before entering to abate
the private nuisance. Nothing in this section alters the remedies available in a private nuisance cause of action.
Section 12. Repealer. The following sections of the Montana Code Annotated are repealed:
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27-30-102. Distinction between public and private nuisances.
27-30-103. Action for nuisance.
27-30-104. Right to recover damages unaffected by abatement.
27-30-105. Successive owners liable for nuisance.
27-30-201. Public nuisance not legalized by time.
27-30-202. Remedies for public nuisances.
27-30-203. When private person may maintain action for public nuisance.
27-30-301. Remedies for private nuisances.
27-30-302. Abatement of private nuisance by injured party.
Section 13. Codification instruction. (1) [Sections 2 and 3] are intended to be codified as an
integral part of Title 27, chapter 30, part 1, and the provisions of Title 27, chapter 30, part 1, apply to [sections 2
and 3].
(2) [Sections 4 through 6] are intended to be codified as an integral part of Title 27, chapter 30,
part 2, and the provisions of Title 27, chapter 30, part 2, apply to [sections 4 through 6].
(3) [Sections 8 through 11] are intended to be codified as an integral part of Title 27, chapter 30,
part 3, and the provisions of Title 27, chapter 30, part 3, apply to [sections 8 through 11].
Section 14. Applicability -- nonapplicability. (1) [This act] applies to a cause of action that accrues
on or after October 1, 2025. A cause of action that accrued prior to October 1, 2025, is governed by the law
applicable immediately before October 1, 2025, and that law is continued in effect for that purpose;
(2) Nothing in [this act] applies to an action filed by the Montana department of justice within 4
years from October 1, 2025, relating to the design, manufacturing, distributing, selling, labeling, or marketing of
opioids. With the consent of the attorney general, other government entities may join an action filed by the
Montana department of justice.
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I hereby certify that the within bill,
HB 791, originated in the House.
___________________________________________
Chief Clerk of the House
___________________________________________
Speaker of the House
Signed this _______________________________day
of____________________________________, 2025.
___________________________________________
President of the Senate
Signed this _______________________________day
of____________________________________, 2025.
HOUSE BILL NO. 791
INTRODUCED BY A. NICASTRO
AN ACT GENERALLY REVISING NUISANCE LAWS; REVISING THE DEFINITION OF PUBLIC NUISANCE;
PROVIDING FOR PREEMPTION; REVISING LAWS RELATING TO LIABILITIES FOR PUBLIC NUISANCES;
PROVIDING FOR PUBLIC NUISANCE ACTIONS BY THE GOVERNMENT; PROVIDING FOR A PRIVATE
CAUSE OF ACTION FOR A PUBLIC NUISANCE; PROVIDING FOR ABATEMENT OF A PUBLIC NUISANCE
BY THE GOVERNMENT; PROVIDING FOR PRIVATE NUISANCES, FOR LIABILITIES OF PRIVATE
NUISANCES, AND FOR REMEDIES FOR PRIVATE NUISANCES; PROVIDING FOR EMERGENCY
ABATEMENT OF PRIVATE NUISANCES BY INJURED PERSONS; AMENDING SECTIONS 27-30-101 AND
27-30-204, MCA; REPEALING SECTIONS 27-30-102, 27-30-103, 27-30-104, 27-30-105, 27-30-201, 27-30-202,
27-30-203, 27-30-301, AND 27-30-302, MCA; AND PROVIDING APPLICABILITY DATES.